Reading into evidence statements from reliable authorities has been an increasingly popular practice since Virginia’s 1992adoption of a modified version of Federal Rule of Evidence 803 (18). By amending Va. Code § 8.01-401.1 to include a more liberal approach to use of learned treatises at trial, Virginia joined most jurisdictions in permitting introduction into evidence of the contents of publications deemed reliable authorities by an expert witness as substantive evidence in addition to the common law usage to impeach on cross examination the credibility of adverse expert witness’ testimony.

Expanding evidentiary usage of learned treatises raised the question of how much judicial scrutiny of the publication itself should precede its introduction into evidence. Once a qualified expert witness laid the foundation that the publication was a reliable authority was the reading into evidence of statements from the publication a done deal? Or, should the trial judge review the statement itself to determine whether it was reliable?

I have always felt that the historical skepticism towards the opinions of experts manifested by the Supreme Court of Virginia would lead the Court to directing trial judge to scrutinize the statement itself for trustworthiness. My forecast became reality with the issuance of Harman v. Honeywell Int’l, Inc., 2014 Va. LEXIS 97 (Va. June 5, 2014).

In Harman, an aviation product liability action against the manufacturer of the plane’s autopilot’s system, the trial court admitted into evidence as a reliable authority the aircraft manufacturer’s accident investigation report. The defendant’s expert witness read into evidence statements from the report over the hearsay objection of the plaintiff. The Supreme Court held the report was not admissible under the “reliable authority” exception to the hearsay rule memorialized in Va. Code § 8.01-401.1 and Va. R. Evid. 2:706(a).

Although the defense expert witness failed to lay a foundation by testifying the report was a reliable authority, the report would not have been admissible even if the expert had uttered the magic words. According to the Court, the report simply was not a treatise, periodical or pamphlet on a subject of science. The report was prepared for litigation purposes by the aircraft manufacturer who was a party defendant at the time of preparation and not subjected to peer review or public scrutiny. The report therefore lacked the reliability necessary to be a learned treatise.

In holding the report was not a reliable authority, the Supreme Court voiced its longstanding concern about expert’s opinions admitted without cross examination by quoting from a case in which I represented the plaintiff and my objection to admitting hearsay opinions in medical records was sustained:

Harman informs us that “learned treatises” must be scrutinized carefully prior to admission to ensure against unfair prejudice. This inquiry should examine not only the reliability of the publication but the substance of the statements. The proffered statements should be relevant, competent evidence to the same extent as if the author was a witness endeavoring to testify.

For example, in a medical malpractice case, an expert witness should not have been permitted to testify about the statistical frequency of perforation during colonoscopies because such raw statistical evidence alone was not probative of the issue of whether the perforation at issue was caused by negligence. Holley v. Pambianco, 270 Va. 180, 613 S.E.2d 425 (2005). The same information contained in published literature deemed a “reliable authority” would similarly be inadmissible. The same objection to admissibility due to lack of relevancy should be made as to the item of literature as was made to proffered testimony of the live witness.

If a foundation is laid that the literature is reliable and it passes muster as being relevant competent evidence, the next step is to question how much weight a jury should give to the statement lifted out of the publication. When a hearsay statement has been admitted into evidence, its credibility (and the credibility of its author) may be attacked by the same tools of impeachment available to impeach the testimony of a trial witness. Va. R. Evid. 806. Possible means of impeachment would include:

Pointing out deficiencies or dissimilarities in the methods of the research.

Showing the cited articles relied upon by the author do not support the conclusions.

Introducing into evidence other statements made by the author contradicting the admitted statement.

Introducing evidence attacking the qualifications of the author.

Introducing evidence of bias on the part of the author.

Harman also offers guidance on another frequent controversy. What is the meaning of “reliable authority”? Experts, seeking to evade cross examination with statements from publications, frequently refuse to concede the publication is a “reliable authority”. Harman makes clear that reliable authority is a judicial determination based on facts and an expert cannot simply say a publication is or is not “authoritative”. Importantly, Harman employs the phrase “a reliable source typically used by experts in his field” in its discourse about what is admissible under the terms of Va. R. Evid. 2:706(a). Harman, 2014 Va. LEXIS at 11-12. If an expert admits the author is respected, the publication is used in practice and teaching, the Court can find it to be reliable and permit cross examination despite the expert’s stubborn refusal to agree it is an “authority”. Other jurisdictions have refused to permit experts to self define “reliable authority” in such a manner to avoid cross examination with published statements. See Freshwater v. Scheidt, 714 N.E.2d 891 (Ohio 1999); Allen v. Safeco Ins. Co. of America, 782 F.2d 1517, 1519 (11th Cir. 1986).

Where a plaintiff sustains an injury and two potential causes of the injury exist, either of which would have been sufficient to produce the injury, a defendant responsible for one of the potential causes can be deemed liable for the injury according to the Supreme Court of Virginia. In Ford Motor Company v. Boomer, Adm’r., decided on January 10, 2013, the Supreme Court ruled a manufacturer of an asbestos containing product could be held liable for asbestos induced disease in a person who had experienced multiple exposures to asbestos from other sources each of which was sufficient to cause the disease.

Ford Motor Company v. Boomer, Adm’r. lays out important principles of proximate cause impacting on any tortious injury or wrongful death case governed by the law of Virginia. The Court noted that the present Virginia Model Jury Instructions fail to adequately articulate the legal precepts governing multiple potential cause scenarios.

The following points should be borne in mind in tort litigation involving an injury with more than one potential cause:

A plaintiff need not prove a negligent party’s acts or commissions caused the injury but merely that the defendant’s conduct was sufficient to have caused the injury.

It is not necessary for the multiple potential causes to have occurred simultaneously.

The factfinder will determine whether the conduct of a defendant was more likely than not sufficient to have caused the injury.

The rules enunciated in Ford Motor Company v. Boomer, Adm’r. apply to any multiple potential cause scenario whether or not the alternative potential causes are tortious or innocent in nature.